dismissed L-1A Case: Textiles And Electronics

PUBLICCOpy
Wentif,iDgdatadeletedto
prevent dearly unwarranted
invasion of personal nrivacy
u.s. Department of Homeland Security
20 Mass. Ave., N.W., Rrn. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: WAC 04 238 51117 Office: CALIFORNIA SERVICE CENTER Date: MAY 25Z007
INRE: Petitioner:
Beneficiary
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(l5)(L) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(l5)(L)
ON BEHALF OF PETITIONER:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned
to the office that originally decided your case. Any further inquiry must be made to that office.
t,.~
j'RObert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
·WAC 04 238 51117
Page 2
DISCUSSION: The Director, California Service Center, denied the petition for a nonimmigrant visa.
The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be
dismissed.
The petitioner is a California corporation and claims to be engaged in the trade of textiles, finished goods
and electronics. The petitioner states that the foreign company and the U.S. company are both wholly­
owned by the beneficiary and are affiliates. Accordingly, the United States entity petitioned Citizenship
and Immigration Services (CIS) to classify the beneficiary as a nonimmigrant intracompany transferee (L­
lA) pursuant to section 101(a)(l5)(L) of the Immigration and Nationality Act (the Act), 8 U.S.C. §
1101(a)(l5)(L). The beneficiary was initially granted a one-year period of stay to open a new office in
the United States and was subsequently granted an extension of stay. The petitioner now seeks to extend
the beneficiary's stay in order to continue to fill the position of president.
The director denied the petition on November 30, 2004, concluding that the record contains insufficient
evidence to demonstrate: (1) that the beneficiary will be employed in a managerial or executive capacity;
and, (2) that the beneficiary's services are to be used for a temporary period in the United States. The
director suggested that it did not appear that any of the beneficiary's subordinates were professionals, and
thus the beneficiary will be primarily involved in performing the day-to-day services essential to
maintaining the business. In addition, the director noted that the beneficiary is the sole owner of the U.S.
entity and the petitioner failed to submit evidence to demonstrate that the beneficiary's services are
temporary and she will be transferred abroad upon completion of the assignment.
Counsel for the petitioner filed a timely appeal on December 30, 2004. On appeal, counsel for the
petitioner states that the beneficiary is employed in a managerial and executive capacity and asserts the
director erred by denying the petition. Counsel asserts that the beneficiary is the "highest ranking
executive" at the U.S. entity, "manages the entire organizational operations," and "supervises and controls
the work of other supervisory and managerial employees." Counsel further asserts that the beneficiary
supervises one general manager who supervises three managers, and thus, the U.S. entity employs four
employees in addition to the beneficiary. Counsel submits a brief and documentation in support of the
appeal.
To establish eligibility under section 101(a)(l5)(L) of the Act, the petitioner must meet certain criteria.
Specifically, within three years preceding the beneficiary's application for admission into the United
States, a firm, corporation, or other legal entity, or an affiliate or subsidiary thereof, must have employed
the beneficiary for one continuous year. Furthermore, the beneficiary must seek to enter the United States
temporarily to continue rendering his or her services to the same employer or a subsidiary or affiliate
thereof in a managerial, executive, or specialized knowledge capacity.
The regulation at 8 C.F.R. § 214.2(1)(3)further states that an individual petition filed on Form 1-129 shall be
accompanied by:
(i) Evidence that the petitioner and the organization which employed or will employ
the alien are qualifying organizations as defined in paragraph (1)(1)(ii)(G) of this
section.
-WAC 04 238 51117
Page 3
(ii) Evidence that the alien will be employed in an executive, managerial, or
specialized knowledge capacity, including a detailed description of the services
to be performed.
(iii) Evidence that the alien has at least one continuous year of full time employment
abroad with a qualifying organization within the three years preceding the filing
of the petition.
(iv) Evidence that the alien's prior year of employment abroad was in a position that
was managerial, executive or involved specialized knowledge and that the alien's
prior education, training, and employment qualifies him/her to perform the
intended services in the United States; however, the work in the United States
need not be the same work which the alien performed abroad.
The first issue to be addressed in this proceeding is whether the petitioner has established that the
beneficiary will be employed in a primarily managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1101(a)(44)(A), provides:
The term "managerial capacity" means an assignment within an organization in which the employee
primarily-
(i) manages the organization, or a department, subdivision, function, or component of the
organization;
(ii) supervises and controls the work of other supervisory, professional, or managerial
employees, or manages an essential function within the organization, or a department or
subdivision of the organization;
(iii) if another employee or other employees are directly supervised, has the authority to
hire and fire or recommend those as well as other personnel actions (such as promotion and
leave authorization), or if no other employee is directly supervised, functions at a senior
level within the organizational hierarchy or with respect to the function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function for
which the employee has authority. A first-line supervisor is not considered to be acting in a
managerial capacity merely by virtue of the supervisor's supervisory duties unless the
employees supervised are professional.
Section 101(a)(44)(B) of the Act, 8 U.S.C. § 1101(a)(44)(B), provides:
The term "executive capacity" means an assignment within an organization in which the employee
primarily-
· WAC 04 238 51117
Page 4
(i) directs the management of the organization or a major component or function of the
organization;
(ii) establishes the goals and policies of the organization, component, or function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives, the
board of directors, or stockholders of the organization.
The nonimmigrant petition was filed on August 27, 2004. In a letter of support dated August 25, 2004, the
beneficiary's proposed duties in the U.S. are described as the following:
As President of [the U.S. entity], [the beneficiary] is responsible for planning, coordinating
and monitoring investigation, study and negotiations of plans for long-term, balanced
growth; organization and accountability of functions within the corporate framework;
insuring effective utilization of talent and efficient management; designing and reviewing
strategies and goals in all areas and implementation of plans to attain goals; monitoring of
corporate performance in areas of profitability, cost-effective, growth, changes in sales and
earnings; insuring the entity has adequate capital and finance resources; making key
decisions regarding sourcing, pricing, and product selection; developing and maintaining
relationships with key external influences on corporate performance such as suppliers,
trading partners, governmental officials, etc.
The petitioner also submitted the U.S. company's IRS Form 1120, U.S. Corporation Income Tax Return, for
2003. The document indicates that the U.S. entity paid compensation of officers in the amount of $48,670
and paid salaries and wages in the amount of $33,967 in 2003. The petitioner stated on Form 1-129 that the
company had three employees at the time of filing.
On September 3, 2004, the director determined that the petitioner submitted insufficient evidence to
process the petition and requested that the petitioner submit the following documentation: (1) a copy of
the U.S. entity's organizational chart, including the job title, duties, educational level, annual
salaries/wages and immigration status of each employee; (2) a detailed description of the duties presently
performed by the beneficiary in the United States, including the percentage of time the beneficiary spends
performing each duty, and whom the beneficiary directs; (3) copies of the California Employment
Development Department, Form DE-6, Quarterly Wage and Withholding Report, for all employees for
the last six quarters; (4) copies of the U.S. company's payroll summary and Forms W-2 and W-3; (5)
further evidence to establish that the beneficiary qualifies under all four criteria for an executive,
including a list of the specific goals and policies the beneficiary has established over the last six months; a
list of the specific discretionary decisions that the beneficiary has exercised over the last six months;
evidence that the higher level executive, the board of directors, or stockholders of the organization require
only general supervision of the beneficiary; and, a specific day-to-day description of the duties the
beneficiary has performed over the last six months.
· WAC 04 238 51117
Page 5
The petitioner submitted a response to the director's request for additional evidence on November 26, 2004.
In a support letter dated November 22, 2004, the petitioner included the following information regarding the
duties performed by the beneficiary in the United States:
The beneficiary is President of [the U.S. entity]. The duties include directing all aspects of
the organization, including evaluation of capital needs, revenue and cash flow, expenses,
expansion and business growth objectives, establishment of policies and goals, planning,
directing and managing investments, development and monitoring of business plan,
negotiation of contracts, supervision over management staff. [The U.S. entity] is a
California corporation. As President, the beneficiary is the highest ranking executive in the
United States and, by corporate charter, is subject to review only by the board of directors
and shareholders of the corporation.
Among specific goals and policies over the past 6-months were effective use of capital,
recruitment/retention of key personnel, identification of business opportunities and increase
of revenues. The specific business decisions included purchase of real estate for income
purposes (buying/selling/renting), pursuit of trading partners (identification of partners,
negotiation of contract terms, locating, purchasing and arranging for delivery, letters of
credit, collection) and growth within the textile industry (establishing printing and
embroidery business, determining costs and potential revenues, deciding on location, hiring
employees, sales and distribution, etc). Many of these have evolved such as 2 of 3
properties were recently sold for profit. We have established international trading of
computer parts and accessories, accounting for $87,260 in exports in the past 2 months. We
have firm orders for $392,640 over the next four months. To date, we have gross exports of
almost $700,000 with net income of almost $140,000.
We have entered into two leases for 6200 square feet of space within premises located at 953
and 955 N. Elm, City of Orange. This space is our textile printing and embroidery business
which is growing rapidly. On the printing side, we have capacity of 1500 pieces daily and
are currently producing 600-800 pieces daily. We receive $6 per piece and are presently
receiving approximately $115,000 per month in revenues. On the em[b]roidery side, we
receive $1.50 per piece and have capacity of 3000 per day. We are currently producing
1250 per day with gross revenues running almost $2 million. We have recently hired 10
workers for the printing and embroidery business which are not reflected in the older
employment documents submitted due to the time lag in filings. We are currently
negotiating with a major US retailer to provide clothing which, if consummated, will take us
to full capacity.
The petitioner also submitted an organizational chart of the U.S. company indicating the job titles and the
names of the employees in each position. The chart indicates the beneficiary as president who supervises the
general manager who supervises three managers. The chart noted that the manager in charge of printing and
embroidery supervises 10 textile/embroidery workers. The chart also indicates that the general manager
"reports to president" and "supervises activities of managers." The chart shows that one manager is in
"charge of printing and embroidery, facilities, machinery/equip, workers;" the second manager is in charge of
·WAC 04 23851117
Page 6
properties and he "evaluates real estate investments, financing strategies, tenancy," and the third manager is
in charge of administration including the office and accounting functions.
The petitioner submitted Forms W-2 for 2003 for four individuals. The individuals listed on the Forms W-2
are also listed on the organizational chart as the beneficiary, the manager of properties, the manager of
administration and the general manager. The Forms W-2 indicated that the manager of administration
received $5,988 in wages for 2003 and the general manager received $5,029 in wages for 2003. Thus, it
appears that the general manager and the manager of properties are working on a part-time basis.
In addition, the petitioner submitted the company's Form 941, Employer's Quarterly Federal Tax Return, for
the quarters ended December 2003, March 2004, June 2004, and September 2004. In each report, the U.S.
entity employed four individuals. In the quarter ended September 2004, the quarter in which the instant
petition was filed, the U.S. entity employed the beneficiary and the three managers listed on the
organizational chart. The general manager listed on the organizational chart does not appear on the federal
tax returns for any quarter in 2004. However, the petitioner submitted a paycheck stub indicating that the
general manager had received 1099 (MISC) wages of $29,535 as of October 8, 2004. The individual
identified as the manager in charge of the printing and embroidery activities appears to be employed on a
part-time basis, based on his quarterly wages of $1,300 to $1,500 throughout 2004.
The response submitted by the petitioner failed to indicate the percentage of time spent by the beneficiary on
each duty, a complete description of the job duties performed by each employee, and their educational levels.
Furthermore, the petitioner failed to submit evidence to establish that the beneficiary qualifies for all four
criteria for an executive. Failure to submit requested evidence that precludes a material line of inquiry shall
be grounds for denying the petition. 8 C.F.R. § 103.2(b)(14).
The director denied the petition on November 30, 2004, on the ground that the petitioner did not establish
that the beneficiary will be employed in a primarily managerial or executive capacity. The director found
that the beneficiary's duties, as described, were too broad and non-specific to convey any understanding
of her actual day-to-day duties. The director further observed that since the United States company
consists of employees that do not appear to be professionals, it is likely that the beneficiary will perform
the duties required for the functions and day-to-day operations of the business, rather than oversee the
functions and/or the personnel that perform those duties.
On appeal, counsel for the petitioner states that the beneficiary is employed in a managerial and executive
capacity and asserts the director erred by denying the petition. Counsel asserts that the beneficiary is the
"highest ranking executive" at the U.S. entity, "manages the entire organizational operations," and
"supervises and controls the work of other supervisory and managerial employees." Counsel states that
"the performance of the above-mentioned detailed executive and managerial duties occupy, at least, 80­
900/0 of [the beneficiary's] time" and "she spends the remainder of her time at the Company negotiating
contracts, overseeing accounting and finance functions and performing day-to-day functions." Counsel
further asserts that the beneficiary supervises one general manager who supervises three managers and
thus, the U.S. entity employs four employees in addition to the beneficiary. Counsel also states that the
U.S. entity plans to hire 4 to 5 additional employees.
.WAC 04 238 51117
Page 7
Counsel's assertions are not persuasive. Upon review of the petition and evidence, the petitioner has not
established that the beneficiary would be employed in a managerial or executive capacity. When examining
the executive or managerial capacity of the beneficiary, the AAO will look first to the petitioner's description
of the job duties. See 8 C.F.R. § 214.2(l)(3)(ii). The petitioner's description of the job duties must clearly
describe the duties to be performed by the beneficiary and indicate whether such duties are either in an
executive or managerial capacity. Id.
The definitions of executive and managerial capacity have two specific requirements. First, the petitioner
must show that the beneficiary performs the high-level responsibilities that are specified in the
definitions. Second, the petitioner must prove that the beneficiary primarily performs these specified
responsibilities and does not spend a majority of his or her time on day-to-day functions. Champion
World, Inc. v. INS, 940 F.2d 1533 (Table), 1991 WL 144470 (9th Cir. July 30, 1991).
Here, while the beneficiary evidently exercises discretion over the day-to-day operations of the business,
the petitioner's description of his current and proposed duties suggests that the beneficiary's actual duties
as of the date of filing were and would continue to be providing the services of the business.
The beneficiary's proposed job description includes vague duties such as the beneficiary is responsible for
"insuring effective utilization of talent and efficient management"; "monitoring of corporate performance
in areas of profitability, cost-effective, growth, changes in sales and earnings"; and "developing and
maintaining relationships with key external influences on corporate performance such as suppliers,
trading partners, governmental officials, etc." Reciting the beneficiary's vague job responsibilities or
broadly-cast business objectives is not sufficient; the regulations require a detailed description of the
beneficiary's daily job duties. The petitioner has failed to provide any detail or explanation of the
beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal the true
nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), affd,
905 F.2d 41 (2d. Cir. 1990).
The job description also includes several non-qualifying duties such as the beneficiary is "responsible for
planning, coordinating and monitoring investigation, study and negotiations of plans for long-term, balanced
growth"; "designing and reviewing strategies and goals in all areas and implementation of plans to attain
goals;" "insuring the entity has adequate capital and finance resources;" and "making key decisions regarding
sourcing, pricing, and product selection." Since the petitioner has not provided a complete description of the
duties performed by the general manager and the three managers employed by the U.S. entity, it appears that
the beneficiary will be providing the financial procurement, marketing, and sales activites rather then
directing such activities through subordinate employees. An employee who "primarily" performs the tasks
necessary to produce a product or provide a service is not considered to be "primarily" employed in a
managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act (requiring that one
"primarily" perform the enumerated managerial or executive duties); see also Matter of Church
Scientology International, 19 I & N Dec. 593, 604 (Comm. 1988).
Furthermore, the director specifically requested that the petitioner provide a detailed job description,
including the beneficiary's specific duties in the United States. The petitioner did not submit the
requested job description as requested by the director. Instead, the petitioner reiterated the job duties
described in the original job description. Failure to submit requested evidence that precludes a material
. WAC 04 238 51117
Page 8
line of inquiry shall be grounds for denying the petition. 8 C.F.R. § 103.2(b)(l4). The petitioner was put
on notice of required evidence and given a reasonable opportunity to provide it for the record before the
visa petition was adjudicated. For this reason alone, the appeal will be dismissed.
As the United States company had only four employees at the time of filing, one of which appears to have
been employed on a part-time basis, it is reasonable to assume, and has not been proven otherwise, that
the beneficiary is directly performing sales, promotion, purchasing, marketing and financial development,
and all or many of the various operational tasks inherent in operating a business on a daily basis, such as
acquiring products, maintaining inventory, paying bills, and customer service. Based on the record of
proceeding, the beneficiary's job duties are principally composed of non-qualifying duties that preclude
him from functioning in a primarily managerial or executive role. Accordingly, the director reasonably
concluded that the beneficiary will be performing the day-to-day operations and directly be providing the
services of the business rather than directing such activities through subordinate employees.
In addition, the petitioner stated that the U.S. entity is in the printing business and is "currently producing
600-800 pieces daily," and in the embroidery business it is "currently producing 1250 per day with gross
revenues running almost $2 million." The petitioner also stated that the U.S. entity employs 10 workers for
the printing and embroidery business, however, has not submitted any documentation evidencing that these
individuals are actually employed by the company. It is incumbent upon the petitioner to resolve any
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to
where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). Thus, the petitioner has not
explained which employees are manufacturing the product they are selling. Going on record without
supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these
proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of
California, 14 I&N Dec. 190 (Reg. Comm. 1972)).
In addition, the petitioner claimed on the Form 1-129 that the U.S. entity is engaged in the trading of
textiles, finished goods and electronics. In a support letter dated August 25, 2004, the petitioner stated
that the U.S. company is primarily engaged in the trade of "ready made clothes." However, in the
response to the director's request for evidence, the petitioner asserts that in the past six months the U.S.
entity was involved in the "purchase of real estate," "establishing printing and embroidery business," and
the "international trading of computer parts and accessories." The organizational chart of the U.S. entity
indicates that the U.S. entity has one manager in charge of the printing and embroidery and one manager
for the properties but it does not indicate any employees involved in the trade of computer parts and
accessories. In addition, the petitioner has not provided any documentation evidencing that the U.S.
entity is doing business in these areas such as the sales contracts of the purchased real estate, copies of the
rental or purchase of the warehouse or equipment necessary to establish the printing and embroidery
business, and/or copies of the invoices and receipts for computer parts. It is incumbent upon the
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent
objective evidence pointing to where the truth lies. Matter ofHo, 19 I&N Dec. at 591-92.
In addition, the petitioner submitted documentation with the original petition indicating that the U.S.
entity employs three managers below the general manager. However, on appeal, counsel for the
· WAC 04 238 51117
Page 9
petitioner asserts that the beneficiary supervises one general manager and three "managers-in-training."
The job duties performed by a manager in training could be very different from duties and responsibilities
of a manager. Again, it is incumbent upon the petitioner to resolve any inconsistencies in the record by
independent objective evidence. Any attempt to explain or reconcile such inconsistencies will not suffice
unless the petitioner submits competent objective evidence pointing to where the truth lies. Matter ofHo,
19 I&N Dec. at 591-92.
The petitioner's description of the beneficiary's duties cannot be read or considered in the abstract, rather
the AAO must determine based on a totality of the record whether the description of the beneficiary's
duties represents a credible perspective of the beneficiary's role within the organizational hierarchy. The
record does not demonstrate that the beneficiary has a sufficient number of employees in the United
States employed full-time who could perform the non-managerial tasks associated with operating a
business involved in textile printing and embroidery, real estate investment, and trading in clothing and
computer equipment. The petitioner's general and vague description of the beneficiary's duties and the
lack of sufficient personnel to perform these tasks make it impossible to conclude that the beneficiary
would plausibly perform primarily managerial or executive duties.
The record shows that as of the date of filing, the petitioner asserts that the beneficiary will control and
direct subordinate managerial staff. The U.S. entity employed one general manager and two managers.
Although the beneficiary is not required to supervise personnel, if it is claimed that his duties involve
supervising employees, the petitioner must establish that the subordinate employees are supervisory,
professional, or managerial. See § 101(a)(44)(A)(ii) of the Act.
In evaluating whether the beneficiary manages professional employees, the AAO must evaluate whether
the subordinate positions require a baccalaureate degree as a minimum for entry into the field of
endeavor. Section 101(a)(32) of the Act, 8 U.S.C. § 1101(a)(32), states that "[t]he term profession shall
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in
elementary or secondary schools, colleges, academies, or seminaries." The term "profession"
contemplates knowledge or learning, not merely skill, of an advanced type in a given field gained by a
prolonged course of specialized instruction and study of at least baccalaureate level, which is a realistic
prerequisite to entry into the particular field of endeavor. Matter ofSea, 19 I&N Dec. 817 (Comm. 1988);
Matter ofLing, 13 I&N Dec. 35 (R.C. 1968); Matter ofShin, 11 I&N Dec. 686 (D.D. 1966).
Therefore, the AAO must focus on the level of education required by the position, rather than the degree
held by subordinate employee. The possession of a bachelor's degree by a subordinate employee does not
automatically lead to the conclusion that an employee is employed in a professional capacity as that term
is defined above. In the instant case, the petitioner has not described the duties performed by the general
manager and the two additional managers in detail and has not established that a bachelor's degree is
actually necessary, for example, to perform the administrative, operational and supervisory work of the
employees of the U.S. entity, who will be among the beneficiary's subordinates. In addition, on appeal,
counsel for the petitioner asserts that the three lower-level managers are "managers in training."
Moreover, the petitioner has not shown that any of its "managers" actually supervise subordinate staff
members or manage a clearly defined department or function of the petitioner, such that they could be
classified as managers or supervisors. Thus, the petitioner has not shown that the beneficiary's
· WAC 04 238 51117
Page 10
subordinate employees are supervisors , professionals , or managers , as required by section
101(a)(44)(A)(ii) of the Act.
Furthermore , on appeal, counsel asserts that the positron offered to the beneficiary is executive in
capacity. The statutory definition of the term "executive capacity" focuses on a person's elevated position
within a complex organizational hierarchy, including major components or functions of the organization,
and that person's authority to direct the organization. Section 101(a)(44)(B) of the Act, 8 U.S.C. §
1101(a)(44)(B). Under the statute , a beneficiary must have the ability to "direct the management" and
"establish the goals and policies" of that organization. Inherent to the definition , the organization must
have a subordinate level of managerial employees for the beneficiary to direct and the beneficiary must
primarily focus on the broad goals and policies of the organization rather than the day-to-day operations
of the enterprise. An individual will not be deemed an executive under the statute simply because they
have an executive title or because they "direct" the enterprise as the owner or sole managerial employee.
The beneficiary must also exercise "wide latitude in discretionary decision making" and receive only
"general supervision or direction from higher level executives , the board of directors, or stockholders of
the organization." Id. A managerial or executive employee must have authority over day-to-day
operations beyond the level normally vested in a first-line supervisor , unless the supervised employees are
professionals . See Matter of Church Scientology International, 19 I&N Dec. 593, 604 (Comm. 1988). As
the beneficiary supervises one general manager who supervises three managers or managers in training,
the U.S. company has not established a complex organizational structure that would elevate the
beneficiary beyond a first-line supervisor, nor does the record demonstrate that the beneficiary primarily
focuses on the broad policies and goals of the organization. In the instant matter , the petitioner has not
established evidence that the beneficiary is employed in an executive capacity with the U.S. entity.
The AAO has long interpreted the regulations and statute to prohibit discrimination against small or
medium size businesses. However , the AAO has also consistently required the petitioner to establish that
the beneficiary 's position consists of primarily managerial and executive duties and that the petitioner has
sufficient personnel to relieve the beneficiary from performing operational and administrative tasks. It is
the petitioner 's obligation to establish through independent documentary evidence that the day-to-day
non-managerial and non-executive tasks of the petitioning entity are performed by someone other than the
beneficiary , although, these employees need not be professionals. Here, the petitioner has not met this
burden.
Based on the foregoing discussion, the petitioner has not established that the beneficiary would be
employed in a primarily managerial or executive capacity under the extended petition. For this reason , the
appeal will be dismissed.
The second issue in the proceeding is whether the beneficiary's services in the United States are for a
temporary period . The regulation at 8 C.F.R. § 214.2(1)(3)(vii) states that if the beneficiary is an owner or
major stockholder of the company , the petition must be accompanied by evidence that the beneficiary's
services are to be used for a temporary period and that the beneficiary will be transferred to an assignment
abroad upon the completion of the temporary services in the United States . In the absence of persuasive
evidence, it cannot be concluded that the beneficiary's services are to be used temporarily or that he will
be transferred to an assignment abroad upon completion of his services in the United States.
, WAC 04 238 51117
Page 11
In the instant matter, the petitioner submitted documentation evidencing that the beneficiary is the sole
owner of both the foreign company and the U.S. company. In reviewing the documentation submitted,
the petitioner did not provide persuasive evidence demonstrating that the beneficiary's services are to be
used temporarily and that she will be transferred to an assignment abroad upon completion of her services
in the United States and thus for this additional reason, the appeal will be dismissed.
The beneficiary was previously granted L-1A classification. It must be emphasized that that each petition
filing is a separate proceeding with a separate record. See 8 C.F.R. § 103.8(d). In making a
determination of statutory eligibility, CIS is limited to the information contained in that individual record
of proceeding. See 8 C.F.R. § 103.2(b)(16)(ii). The prior approvals do not preclude CIS from denying an
extension of the original visa based on reassessment of petitioner's qualifications. Texas A&M Univ. v.
Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 (5th Cir. 2004).
If the previous nonimmigrant petition was approved based on the same unsupported and contradictory
assertions that are contained in the current record, the approval would constitute material and gross error
on the part of the director. The AAO is not required to approve applications or petitions where eligibility
has not been demonstrated, merely because of prior approvals that may have been erroneous. See, e.g.
Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). It would be absurd to
suggest that CIS or any agency must treat acknowledged errors as binding precedent. Sussex Engg. Ltd.
v. Montgomery, 825 F.2d 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a
court of appeals and a district court. Even if a service center director had approved the nonimmigrant
petitions on behalf of the beneficiary, the AAO would not be bound to follow the contradictory decision
of a service center. Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248
F.3d 1139 (5th Cir. 2001), cert. denied, 122 S.Ct. 51 (2001).
The petition will be denied for the above stated reasons, with each considered as an independent and
alternative basis for the decision. In visa petition proceedings, the burden of proving eligibility for the
benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. Here, that
burden has not been met. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.